The Bioterrorism Preparedness and Response Act of 2002 Goes to Geneva, or, Would Bioterror Get the Same Treatment as Biotech under WTO Rules?

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The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (1) ("the BT Act" or "the Act") was written and passed during the difficult, uncertain period of late 2001 and early 2002. This period saw a robust congressional response to the harrowing events of September 11 and to the anthrax mailings that followed: the PATRIOT Act, (2) the Authorization for Use of Military Force, (3) and the BT Act all emerged from this era, and purportedly empowered various governmental institutions and agencies to guard against newly revealed threats. Of these, the BT Act, specifically Title III of the Act, responded most directly to the threat of contamination (terroristic or otherwise) in the food supply. (4)

As with the several other attempts at legislative counterterrorism, questions have arisen regarding the efficacy of the BT Act and its compliance with the United States' international obligations. (5) In particular, a wide spectrum of commentators and actors both inside and outside of the international trade community has argued that the BT Act violates the United States' obligations under the World Trade Organization's ("WTO') Agreement on Sanitary and Phytosanitary Measures ("SPS" or "SPS Agreement"). (6) Most pointedly, it has been argued that Title III of the BT Act facially discriminates between foreign and domestic food producers and is not based on a risk assessment as the SPS Agreement requires. (7) According to Claire Boisen's in-depth analysis and argument, because the BT Act saddles foreign producers with new and considerable administrative burdens and costs while allowing domestic producers to continue business under existing regulations, (8) and because it does so without the scientific justification of a proper risk assessment, (9) the BT Act would likely constitute an impermissible restriction on international trade under the SPS Agreement and the relevant WTO jurisprudence. (10)

The arguments of Boisen and related commentators, however, do not meaningfully consider the opposing possibility: that the BT Act might in fact comply with at least the letter (if not the spirit) of some of the SPS Agreement's requirements to the satisfaction of a WTO dispute settlement panel, (11) particularly in light of the relatively deferential holding issued by the panel in the recent case, European Communities--Measures Affecting the Approval and Marketing of Biotech Products ("EC-Biotech"). (12)

In that case, the United States, Canada, and Argentina filed complaints before the WTO Dispute Settlement Body, claiming that various European Union restrictions on the importation and marketing of genetically modified ("GM") crops and food violated the EU's other treaty obligations under the SPS Agreement and General Agreement on Tariffs and Trade ("GATT') provisions. Of particular note, the United States claimed (1) that the EU, by failing to issue decisions regarding the approval or rejection of new GM crops and food, violated its obligation under Article 8 and Annex C of the SPS Agreement to avoid "undue delay" in approval procedures; (2) that this indefinite delay constituted a de facto moratorium on GM products, and that the EU failed to publish promptly a notification of this moratorium, in violation of SPS Agreement Article 7 and Annex B; (3) that this moratorium was not based on a risk assessment as required by SPS Agreement Article 5.1; and (4) that because no such moratorium applied to certain GM processing aids such as enzymes used in making European cheeses, the moratorium constituted an arbitrary or unjustifiable distinction in the level of protection applied to different GM products, in violation of SPS Article 5.5. (13)

Though the latter two claims were clearly the substantive crux of the United States' case, the panel ruled against the EU only with respect to the first claim, the procedural claim of undue delay in approvals. (14) Importantly, however, the panel concluded that the EU practice of refusing to issue decisions on the approval of new GM products did not constitute an SPS measure at all, and was therefore not subject to the SPS Agreement's requirements. …